EXHIBIT 4.2
CONSULTING AGREEMENT DATED AUGUST 1, 2003 BETWEEN HY-TECH TECHNOLOGY
GROUP, INC. AND XXXXX X. XXXXXXX
This Consulting Agreement (the "Agreement") is entered into this 1st
day of August 2003 by and between HY-Tech Technology Group, Inc., a Delaware
corporation, having its principal place of business at 0000 Xxx Xxxxx Xxxxx,
Xxxx Xxxxx, XX 00000, (the "Company") and Xxxxx X. Xxxxxxx, an individual, with
an address at 0000 Xxx Xxxxx Xxxxx, Xxxx Xxxxx, XX 00000 (the "Consultant").
WHEREAS, the Company wishes to engage Consultant to advise the Company
and Consultant wishes to accept such engagement, all upon the terms and subject
to the conditions contained in this Agreement;
NOW, THEREFORE, the parties hereto, in consideration of the mutual
consideration and promises contained herein and intending to be bound, hereby
agree as follows:
1. APPOINTMENT. The Company hereby appoints Consultant, and Consultant
agrees to serve as, consultant to the Company, all upon the terms, and subject
to the conditions of this Agreement.
2. TERM. The term of this Agreement shall begin on the date first set
forth above and shall continue until August 1, 2004.
3. DUTIES OF CONSULTANT. Consultant shall advise the Company and
structure repayment terms respecting a loan between the Company and Sun Trust
Bank. Consultant shall render such advice and assistance as the Company may
reasonably request of him pursuant to such duties.
4. COMPENSATION. In consideration of, and in full payment for, the
entering into this Agreement, and in lieu of any cash payments from the Company
to the Consultant in connection with his duties contemplated under this
Agreement, the Company hereby agrees to pay Consultant Two Million Two Hundred
Fifty Seven Thousand Seven Hundred Twenty Six (2,257,726) shares (the "Shares")
of the Company's common stock, $.001 par value per share. The Company further
agrees, that prior to issuance of the shares, it will file a registration
statement on Form S-8, including the Shares, with the Securities and Exchange
Commission. Consultant shall be responsible for all travel and other related
expenses incurred by Consultant in connection with the performance of his
consulting duties hereunder, unless otherwise consented to in writing in advance
by the Company.
5. STATUS AS INDEPENDENT CONTRACTOR. The parties intend and acknowledge
that Consultant is acting as an independent contractor and not as an employee of
the Company. Consultant shall have full discretion in determining the amount of
time and activity to be devoted to rendering the services contemplated under
this Agreement and the level of compensation to Consultant is not dependent upon
any preordained time commitment or level of activity. The Company acknowledges
that Consultant shall remain free to accept other consulting engagements of a
like nature to the engagement under this Agreement. Consultant, however, hereby
undertakes to notify the Company in writing of any engagement undertaken by
Consultant that, in the view of Consultant, creates a conflict of interest with
the Company's engagement of Consultant. Nothing in this Agreement shall be
construed to create any partnership, joint venture or similar arrangement
between the Company and Consultant or to render either party responsible for any
debts or liabilities of the other.
6. CONFIDENTIALITY.
(a) Consultant acknowledges that in connection with the
services to be rendered under this Agreement, Consultant may be provided with
confidential business information of the Company. Consultant agrees to keep any
information or materials specifically designated in writing by a responsible
officer of the Company as confidential (the "Confidential Information") in the
strictest confidence and not to disclose or disseminate any such Confidential
Information to any person, firm or other business entity except to those
employees, consultants or other independent contractors of the Company or
Consultant as shall be necessary or advisable for the carrying out of the
purposes of this Agreement and who are under a similar obligation of
confidentiality.
(b) The Company acknowledges that Consultant may, in rendering
the services to be rendered hereunder, be utilizing materials that are
proprietary to Consultant. The Company acknowledges that any such materials that
are specifically designated in writing to the Company to be proprietary to
Consultant will remain the property of Consultant and the Company will treat
such materials as confidential information of Consultant and will not disclose
or disseminate any such confidential information to any person, firm or other
business entity except to those employees, consultants or other independent
contractors of the Company or Consultant as shall be necessary or advisable for
the carrying out of the purposes of this Agreement and who are under a similar
obligation of confidentiality.
7. INDEMNIFICATION. The Company shall indemnify Consultant for any
loss, damage, expenses, claims or other liabilities (including, without
limitation, attorneys' fees) resulting from a breach or alleged breach of any of
the representations and warranties of the Company, or the failure of the Company
to perform any of its obligations, contained in this Agreement.
8. AMENDMENTS, MODIFICATIONS, WAIVERS, ETC. No amendment or
modification to this Agreement, nor any waiver of any term or provision hereof,
shall be effective unless it shall be in a writing signed by the party against
whom such amendment, modification or waiver shall be sought to be enforced. No
waiver of any term or provision shall be construed as a waiver of any other term
or condition of this Agreement, nor shall it be effective as to any other
instance unless specifically stated in a writing conforming with the provisions
of this Paragraph 8.
9. SUCCESSORS AND ASSIGNS. This Agreement shall be enforceable against
any successors in interest, if any, to the Company and Consultant. Neither the
Company nor Consultant shall assign any of their respective rights or
obligations hereunder without the written consent of the other in each instance.
10. NOTICES. Any notices required or permitted to be given under this
Agreement shall be effective upon receipt at the respective addresses in the
recitals to this Agreement unless the address for notice to either party shall
have been changed by a notice given in accordance with this Paragraph 10.
11. GOVERNING LAW. This Agreement shall be governed by, and construed
in accordance with, the substantive laws of the State of New York for contracts
executed and to be performed wholly within such state, without regard for
principals of conflicts of laws.
IN WITNESS WHEREOF, the parties hereto have set their respective hands
as of the date first above written.
HY-TECH TECHNOLOGY GROUP, INC.
By: /s/ XXXXXX XXXXXXX /s/ XXXXX X. XXXXXXX
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Xxxxxx Xxxxxxx Xxxxx X. Xxxxxxx
Chief Executive Officer
